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EXCEL - IDEA: XBRL DOCUMENT - EXPRESS SCRIPTS INC | Financial_Report.xls |
10-K - FORM 10-K - EXPRESS SCRIPTS INC | c54821e10vk.htm |
EX-3.1 - EX-3.1 - EXPRESS SCRIPTS INC | c54821exv3w1.htm |
EX-31.1 - EX-31.1 - EXPRESS SCRIPTS INC | c54821exv31w1.htm |
EX-32.2 - EX-32.2 - EXPRESS SCRIPTS INC | c54821exv32w2.htm |
EX-31.2 - EX-31.2 - EXPRESS SCRIPTS INC | c54821exv31w2.htm |
EX-23.1 - EX-23.1 - EXPRESS SCRIPTS INC | c54821exv23w1.htm |
EX-12.1 - EX-12.1 - EXPRESS SCRIPTS INC | c54821exv12w1.htm |
EX-32.1 - EX-32.1 - EXPRESS SCRIPTS INC | c54821exv32w1.htm |
EX-21.1 - EX-21.1 - EXPRESS SCRIPTS INC | c54821exv21w1.htm |
EX-10.30 - EX-10.30 - EXPRESS SCRIPTS INC | c54821exv10w30.htm |
Exhibit 3.2
THIRD AMENDED AND RESTATED
BYLAWS
of
EXPRESS SCRIPTS, INC.
Adopted November 21, 2000
(as amended February 6, 2001)
(as further amended May 26, 2004)
(as further amended December 15, 2004)
(as further amended December 18, 2009)
(as amended February 6, 2001)
(as further amended May 26, 2004)
(as further amended December 15, 2004)
(as further amended December 18, 2009)
1. MEETINGS OF STOCKHOLDERS.
1.1 Annual Meeting. The annual meeting of stockholders shall be held on the date and
at the time fixed from time to time by the board of directors (the Board), provided, that each
successive annual meeting shall be held on the fourth Wednesday in May of each year if not a legal
holiday, and if a legal holiday then on the next succeeding day not a legal holiday, or on such
other date or time and at such place as may be determined from time to time by resolutions adopted
by the Board.
1.2 Special Meetings. Subject to the rights of the holders of any series of preferred
stock under the Certificate of Incorporation, as amended, of the corporation (the Certificate of
Incorporation), special meetings of the stockholders may be called by the chairman of the Board or
the chief executive officer or by resolution of the Board. Only business related to the purposes
set forth in the notice of the meeting may be transacted at a special meeting.
1.3 Place and Time of Meetings. Meetings of the stockholders may be held in or
outside Delaware at the place and time specified by the Board; provided that the Board may, in its
sole discretion, determine that the meeting shall not be held at any place, but may instead be held
solely by means of remote communication as authorized by Section 211(a)(2) of the General
Corporation Law of the State of Delaware (the General Corporation Law of Delaware).
1.4 Notice of Meeting; Waiver of Notice. (a) Written or printed notice of each
meeting of stockholders shall be given by or at the direction of the secretary or the chief
executive officer of the corporation to each stockholder entitled to vote at the meeting, except
that (a) it shall not be necessary to give notice to any stockholder who properly waives notice
before or after the meeting, whether in writing or by electronic transmission or otherwise, and (b)
no notice of an adjourned meeting need be given except when required under Section 1.6 of these
Bylaws or by law. Each notice of a meeting shall be given, personally or by mail or, as
provided
below, by means of electronic transmission, not less than ten (10) nor more than sixty (60) days
before the meeting and shall state the time and place of the meeting, or if held by remote
communications, the means of remote communication by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and unless it is the annual meeting, shall
state at whose direction or request the meeting is called and the purposes for which it is called.
The attendance of any stockholder at a meeting, without protesting at the beginning of the meeting
that the meeting is not lawfully called or convened, shall constitute a waiver of notice by him or
her. Any previously scheduled meeting of stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides) any special meeting of stockholders may be
canceled, by resolution of the Board upon public disclosure (as defined in Section 1.13(a)) given
on or prior to the date previously scheduled for such meeting of stockholders.
(b) Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to a stockholder may be given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such consent shall be revocable
by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked
(1) if the corporation is unable to deliver by electronic transmission two consecutive notices
given by the corporation in accordance with such consent and (2) such inability becomes known to
the secretary or an assistant secretary of the corporation or to the transfer agent, or other
person responsible for the giving of notice; provided, however, the inadvertent failure to treat
such inability as a revocation shall not invalidate any meeting or other action. For purposes of
these Bylaws, electronic transmission means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained, retrieved and reviewed
by a recipient thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
(c) Notice shall be deemed given, if mailed, when deposited in the United States mail with
postage prepaid, if addressed to a stockholder at his or her address on the corporations records.
Notice given by electronic transmission shall be deemed given: (1) if by facsimile, when directed
to a number at which the stockholder has consented to receive notice; (2) if by electronic mail,
when directed to an electronic mail address at which the stockholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice to the stockholder
of such specific posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (4) by any other form of electronic transmission, when directed to the stockholder.
(d) An affidavit of the secretary or an assistant secretary or of the transfer agent or other
agent of the corporation that the notice has been given, whether by a form of electronic
transmission or otherwise, shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
1.5 Quorum; Voting; Validation of Meeting. (a) The holders of a majority in voting
power of the stock issued and outstanding and entitled to vote thereat, present in person or
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represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum is not present or represented at any meeting of the
stockholders, then either (i) the person presiding over the meeting or (ii) the stockholders by the
vote of the holders of a majority of the stock, present in person or represented by proxy shall
have power to adjourn the meeting in accordance with Section 1.6 of these Bylaws.
(b) When a quorum is present at any meeting, a plurality of the votes present in person or
represented by proxy and entitled to vote on the election of a director shall be sufficient to
elect directors, subject to the rights of the holders of preferred stock to elect directors under
specified circumstances pursuant to the Certificate of Incorporation. On all other matters, the
vote of the holders of a majority of the stock having voting power on such matter present in person
or represented by proxy shall decide any question brought before such meetings, unless the question
is one upon which, by express provision of the laws of the State of Delaware or of the Certificate
of Incorporation or these Bylaws, a vote of a greater number or voting by classes is required, in
which case such express provision shall govern and control the decision of the question.
(c) If a quorum is initially present, the stockholders may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if
any action taken is approved by a majority of the stockholders initially constituting the quorum.
(d) The transactions of any meeting of stockholders, either annual or special, however called
and noticed, and wherever held, shall be as valid as though they had been taken at a meeting duly
held after regular call and notice, if a quorum is present either in person or by proxy.
1.6 Adjourned Meeting; Notice. (a) Any stockholders meeting, annual or special,
whether or not a quorum is present, may be adjourned from time to time by the vote of the majority
of the voting power of the shares represented at that meeting, either in person or by proxy. In
the absence of a quorum, no other business may be transacted at that meeting except as provided in
Section 1.5 of these Bylaws.
(b) When any meeting of stockholders, either annual or special, is adjourned to another time
or place or means of remote communication, notice need not be given of the adjourned meeting if the
time and place, if any, thereof, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such adjourned
meeting, are announced at the meeting at which the adjournment is taken. However, if a new record
date for the adjourned meeting is fixed or if the adjournment is for more than thirty (30) days
from the date set for the original meeting, then notice of the adjourned meeting shall be given.
Notice of any such adjourned meeting shall be given to each stockholder of record entitled to vote
at the adjourned meeting in accordance with
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the provisions of Section 1.4 of these Bylaws. At any adjourned meeting the corporation may transact any business that might
have been transacted at the original meeting.
1.7 Voting. (a) The stockholders entitled to vote at any meeting of stockholders
shall be determined in accordance with the provisions of Section 1.8 of these Bylaws, subject to
the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to
voting rights of fiduciaries, pledgors and joint owners, and to voting trusts and other voting
agreements).
(b) Except as may be otherwise provided in the Certificate of Incorporation, by these Bylaws
or as required by law, each stockholder shall be entitled to one vote for each share of capital
stock held by such stockholder which has voting power upon the matter in question.
(c) Any stockholder entitled to vote on any matter may vote part of the shares in favor of the
proposal and refrain from voting the remaining shares or, except when the matter is the election of
directors, may vote the remaining shares against the proposal; but if the stockholder fails to
specify the number of shares which the stockholder is voting affirmatively or otherwise indicates
how the number of shares to be voted affirmatively is to be determined, it will be conclusively
presumed that the stockholders approving vote is with respect to all shares which the stockholder
is entitled to vote.
(d) Voting need not be by ballot unless requested by a stockholder at the meeting or ordered
by the chairman of the meeting; however, all elections of directors shall be by written ballot,
unless otherwise provided in the Certificate of Incorporation; provided, that if authorized by the
Board, a written ballot may be submitted by electronic transmission, provided that any such
electronic transmission must either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the stockholder or proxyholder.
1.8 Record Date for Stockholder Notice. (a) For purposes of determining the
stockholders entitled to notice of any meeting or to vote thereat, the Board may fix, in advance, a
record date, which shall not precede the date upon which the resolution fixing the record date is
adopted by the Board, and which record date shall not be more than sixty (60) days nor less than
ten (10) days before the date of any such meeting, and in such event only stockholders of record on
the date so fixed are entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date, except as otherwise provided in the Certificate
of Incorporation, by these Bylaws, by agreement or by applicable law.
(b) If the Board does not so fix a record date, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held.
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(c) A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting unless the Board fixes a new record date
for the adjourned meeting, but the Board shall fix a new record date if the meeting is adjourned
for more than thirty (30) days from the date set for the original meeting.
(d) The record date for any other lawful purpose shall be as provided in Section 5.8 of these
Bylaws.
1.9 Proxies. Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents authorized by a written
proxy filed with the secretary of the corporation. A written proxy may be in the form of a
telegram, cablegram, or other means of electronic transmission which sets forth or is submitted
with information from which it can be determined that the telegram, cablegram, or other means of
electronic transmission was authorized by the person. No such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long
as, it is coupled with an interest sufficient in law to support an irrevocable power. The
revocability of a proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware. A stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later
date with the secretary of the corporation.
A proxy is not revoked by the death or incapacity of the maker unless, before the vote is
counted, written notice of such death or incapacity is received by the secretary of the
corporation.
1.10 List of Stockholders. Not less than 10 days prior to the date of any meeting of
stockholders, the secretary of the corporation shall prepare a complete list of stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of such stockholder; provided, that the
corporation shall not be required to include electronic mail addresses or other electronic contact
information on such list. For a period of not less than 10 days prior to the meeting, the list
shall be available during ordinary business hours for inspection by any stockholder for any purpose
germane to the meeting. During this period, the list shall be kept either (1) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting or (2) during ordinary business hours, at the principal
place of business of the corporation. If the corporation determines to make the list available on
an electronic network, the corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting is to be held
solely by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible
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electronic network, and the information required to access such list shall be provided with the
notice of the meeting.
1.11 Notice of Stockholder Nominee. Only persons who are nominated in accordance with
the procedures set forth in this paragraph shall be eligible for election by the stockholders as
directors of the corporation. Nominations of persons for election to the Board may be made at a
meeting of stockholders (a) by or at the direction of the Board, or (b) provided that the Board has
determined that directors shall be elected at such meeting, by any stockholder of the corporation
entitled to vote for the election of directors at such meeting who complies with the procedures set
forth in this paragraph. Such nominations by any stockholder shall be made pursuant to timely
notice in proper written form to the secretary of the corporation in accordance with this
paragraph. To be timely, a stockholders notice must be delivered to or mailed to and received by
the secretary at the principal executive offices of the corporation not less than 90 days nor more
than 120 days in advance of the first anniversary of the preceding years annual meeting; provided,
however, that in the event that (i) no annual meeting was held in the previous year or (ii) the
date of the annual meeting has been changed by more than 30 days from the date of the previous
years meeting, or in the event of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the tenth day following the day on
which notice of the date of the meeting was mailed or public disclosure of the date of the meeting
was made, whichever occurs first. In no event shall the public disclosure of an adjournment or
postponement of a stockholders meeting commence a new time period for the giving of a stockholders
notice as described above. To be in proper written form, such stockholders notice to the
secretary shall set forth in writing (a) as to each person whom such stockholder proposes to
nominate for election or re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (or any successor thereto) (the Exchange Act), including, without limitation, such
persons written consent to being named in the proxy statement as a nominee and to serving as
director if elected as well as (i) such persons name, age, business address and residence address,
(ii) his or her principal occupation or employment, (iii) the class and number of shares of the
corporation that are beneficially owned by such person, and (iv) a description of all arrangements
or understandings between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nominations are to be made by the stockholder; and
(b) as to such stockholder (i) the name and address, as they appear on the corporations books, of
such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, and (ii)
the class and number of shares of the corporation which are beneficially owned by such stockholder
and the beneficial owner, if any, on whose behalf the nomination is made, and any material interest
of such stockholder and owner. At the request of the Board, any person nominated by the Board for
election as a director shall furnish to the secretary of the corporation that information required
to be set forth in a stockholders notice of nomination which pertains to the nominee. No person
shall be eligible for election by the stockholders as a director unless nominated in accordance
with the procedures set forth in the
Bylaws of the corporation. The chairman of the meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination was not made in accordance with the procedures
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prescribed by the Bylaws of the corporation, and if he or she shall so determine, he or she shall so declare
at the meeting that the defective nomination shall be disregarded.
1.12 Stockholder Proposals. At any special meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting by or at the direction of
the Board. At any annual meeting of the stockholders, only such business shall be conducted as
shall have been brought before the meeting (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b) otherwise properly brought
before the meeting by or at the direction of the Board, or (c) by any stockholder who complies with
the procedures set forth in this paragraph. For business properly to be brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof in proper written
form to the secretary of the corporation and such other business must otherwise be a proper matter
for stockholder action. To be timely, a stockholders notice must be delivered to or mailed to and
received by the secretary at the principal executive offices of the corporation not less than 90
days nor more than 120 days in advance of the first anniversary of the preceding years annual
meeting; provided, however, that in the event that (i) no annual meeting was held in the previous
year or (ii) the date of the annual meeting has been changed by more than 30 days from the date of
the previous years meeting, not later than the close of business on the tenth day following the
day on which notice of the date of the meeting was mailed or public disclosure of the date of the
meeting was made, whichever occurs first. In no event shall the public disclosure of an
adjournment or postponement of a stockholders meeting commence a new time period for the giving of
a stockholders notice as described above. To be in proper written form, such stockholders notice
to the secretary shall set forth in writing as to each matter such stockholder proposed to bring
before the annual meeting (a) a brief description of the business desired to be brought before the
meeting, (b) the name and address, as they appear on the corporations books, of the stockholder
proposing such business, and the beneficial owner, if any, on whose behalf the nomination or
proposal is made, (c) the text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a proposal to amend the
Bylaws of the corporation, the language of the proposed amendment) and the reasons for conducting
such business at the meeting, (d) the class and number of shares of the corporation which are owned
beneficially by such stockholder and the beneficial owner, if any, on whose behalf the proposal is
made, (e) any material interest in such business of the stockholder or the beneficial owner, if
any, on whose behalf the proposal is made, (f) any other information that is required to be
provided by the stockholder pursuant to Regulation 14A under the Exchange Act in such stockholders
capacity as a proponent of a stockholder proposal, (g) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business, and (h) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which intends (i) to
deliver a proxy statement and/or form of proxy to holders of at least the percentage of the
corporations outstanding capital stock required to approve or adopt the proposal or (ii) otherwise
to solicit proxies from stockholders in support of such proposal. The
foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the corporation of his or her intention to present a proposal at an annual meeting in
compliance with Rule 14a-8 (or any
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successor thereof) promulgated under the Exchange Act and such
stockholders proposal has been included in a proxy statement that has been prepared by the
corporation to solicit proxies for such annual meeting. Notwithstanding anything in the Bylaws to
the contrary, no business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this paragraph. The chairman of an annual meeting shall, if the facts
warrant, determine and declare at the meeting that business was not properly brought before the
meeting in accordance with the provisions of this paragraph, and, if he or she should so determine,
he or she shall so declare at the meeting that any such business not properly brought before the
meeting shall not be transacted.
1.13 Public Disclosure; Conduct of Nominations and Proposals by Stockholders. (a)
For purposes of Sections 1.4(a), 1.11 and 1.12 hereof, public disclosure shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press, Reuters or comparable
national news service or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(b) Notwithstanding the foregoing provisions of these Sections 1.11 and 1.12, if the
stockholder (or a qualified representative of the stockholder) does not appear at the annual
meeting of stockholders of the corporation to present a nomination or business, such nomination
shall be disregarded and such proposed business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the corporation.
(c) Notwithstanding the foregoing provisions of Sections 1.11 and 1.12, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in Sections 1.11 and 1.12. Nothing in these
Sections 1.11 and 1.12 shall be deemed to affect any rights (i) of stockholders to request
inclusion of proposals in the corporations proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of preferred stock to elect directors under
specified circumstances pursuant to the Certificate of Incorporation.
1.14 Meeting Required. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate action, such vote may
only be taken at an annual or special meeting with prior notice, except as provided in the
Certificate of Incorporation.
1.15 Organization. (a) Meetings of stockholders shall be presided over by the
chairman of the Board, if any, or in his or her absence by the vice chairman of the Board, if any,
or in his or her absence, by the chief executive officer, if any, or in his or her absence by a
chairman of the meeting, which chairman must be an officer or director of the corporation and must
be designated as chairman of the meeting by the Board. The secretary, or in his or her absence an
assistant secretary, or in his or her absence a person whom the person presiding over
the meeting shall appoint, shall act as secretary of the meeting and keep a record of the
proceedings thereof.
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(b) The Board shall be entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem appropriate. Subject to such rules and regulations of the Board,
if any, the person presiding over the meeting shall have the right and authority to convene and
adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts
as, in the judgment of the person presiding over the meeting, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such meeting to
stockholders of record of the corporation and their duly authorized and constituted proxies and
such other persons as the person presiding over the meeting shall permit, restrictions on entry to
the meeting after the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing of the polls for
balloting and matters which are to be voted on by ballot. The person presiding over the meeting,
in addition to making any other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or
business was not properly brought before the meeting and if the person presiding over the meeting
should so determine and declare, any such matter or business shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding over the meeting,
meetings of stockholders shall not be required to be held in accordance with rules of parliamentary
procedure.
1.16 Inspectors of Election. Before any meeting of stockholders, the Board may, and
shall if required by law, appoint one or more inspectors of election, who may be employees of the
corporation, to act at the meeting or its adjournment and to make a written report thereof. If any
person appointed as inspector fails to appear or fails or refuses to act, then the person presiding
over the meeting may, and upon the request of any stockholder or a stockholders proxy, shall
appoint a person to fill that vacancy.
Such inspectors shall:
(a) | determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies and ballots; | ||
(b) | receive votes and ballots, including, if applicable, votes and ballots submitted by means of electronic transmission; | ||
(c) | hear and determine all challenges and questions in any way arising in connection with the right to vote; | ||
(d) | determine when the polls shall close; | ||
(e) | determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector or inspectors; |
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(f) | certify their determination of the number of shares of the corporation represented at the meeting and such inspectors count of all votes and ballots, which certification and report shall specify such other information as may be required by law; and | ||
(g) | do any other acts that may be proper to conduct the election or vote with fairness to all stockholders. |
Each inspector of election shall perform his or her duties impartially, in good faith, to the
best of his or her ability and as expeditiously as is practical, and before entering upon the
discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of
inspector of election with strict impartiality and according to the best of his or her ability. In
determining the validity and counting of proxies and ballots cast at any meeting of stockholders of
the corporation, the inspectors may consider such information as is permitted by applicable law. If
there are three (3) or more inspectors of election, the decision, act or certificate of a majority
is effective in all respects as the decision, act or certificate of all. Any report or certificate
made by the inspectors of election is prima facie evidence of the facts stated therein.
1.17 Election Out of Section 203. Pursuant to the corporations original Certificate
of Incorporation, the corporation has expressly elected not to be governed by Section 203 of the
General Corporation Law of Delaware.
2. BOARD OF DIRECTORS.
2.1 Number, Qualification, Election and Term of Directors. Subject to the provisions
of the General Corporation Law of Delaware and to any limitations in the Certificate of
Incorporation, the business and affairs of the corporation shall be managed by or under the
direction of the Board. Subject to the rights of the holders of any series of preferred stock, the
number of directors may be fixed or changed from time to time by resolution of a majority of the
entire Board; provided the number shall be no less than seven (7) and no more than fifteen (15),
or, if the number is not fixed, the number shall be ten (10), but no decrease may shorten the term
of any incumbent director. Directors shall be elected at each annual meeting of stockholders, as
provided in Section 1.5(b), and shall hold office until the next annual meeting of stockholders and
until the election and qualification of their respective successors, subject to the provisions of
Section 2.9. As used in these Bylaws, the term entire Board means the total number of directors
which the corporation would have if there were no vacancies on the Board.
2.2 Quorum and Manner of Acting. (a) A majority of the entire Board shall constitute
a quorum for the transaction of business at any meeting, except as provided in Section 2.10 of
these Bylaws. In the absence of a quorum a majority of the directors present may adjourn any
meeting from time to time until a quorum is present. Every act or decision done or made by a
majority of the directors present at a duly held meeting at which a quorum is present
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shall be
regarded as the act of the Board, subject to the provisions of the Certificate of Incorporation and
applicable law.
(b) A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
2.3 Place of Meetings. Meetings of the Board may be held in or outside Delaware.
2.4 Annual and Regular Meetings. Annual meetings of the Board for the election of
officers and consideration of other matters shall be held either (a) without notice immediately
after the annual meeting of stockholders and at the same place, or (b) as soon as practicable after
the annual meeting of stockholders, on notice as provided in Section 2.6 of these Bylaws. Regular
meetings of the Board may be held without notice and, unless otherwise specified by the Board,
shall be held in accordance with a schedule and at such locations as determined from time to time
by the Board, provided no less than five (5) such meetings shall beheld each year. If the day
fixed for a regular meeting is a legal holiday, the meeting shall be held on the next business day.
2.5 Special Meetings. Special meetings of the Board may be called by the chairman of
the board, the chief executive officer or by a majority of the directors in office.
2.6 Notice of Meetings; Waiver of Notice. Notice of the time and place of each
special meeting of the Board, and of each annual meeting not held immediately after the annual
meeting of stockholders and at the same place, shall be given to each director in advance of the
time set for such meeting as provided herein; provided, that if the meeting is to be held at the
principal executive offices of the corporation, the notice need not specify the place of the
meeting. Except for amendments to the Bylaws, as provided under Section 6.9, notice of a special
meeting need not state the purpose or purposes for which the meeting is called and, unless
indicated in the notice thereof, any and all business may be transacted at a special meeting.
Notice need not be given to any director who submits a signed waiver of notice before or after the
meeting or who attends the meeting without protesting at the beginning of the meeting the
transaction of any business because the meeting was not lawfully called or convened. Notice of any
adjourned meeting need not be given, other than by announcement at the meeting at which the
adjournment is taken unless the meeting is adjourned for more than twenty-four (24) hours. If the
meeting is adjourned for more than twenty-four (24) hours, then notice of the time and place of the
adjourned meeting shall be given before the adjourned meeting takes place, in the manner specified
herein to the directors who were not present at the time of adjournment. Notice
of a special meeting may be given by any one or more of the following methods and the method used
need not be the same for each director being notified:
(a) | Written notice sent by mail at least three (3) days prior to the meeting; | ||
(b) | Personal service at least twenty-four (24) hours prior to the time of the meeting; |
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(c) | Telegraphic notice at least twenty-four (24) hours prior to the time of the meeting, said notice to be sent as a straight full-rate telegram; | ||
(d) | Telephonic notice at least twenty-four (24) hours prior to the time of the meeting; or | ||
(e) | Facsimile or other means of electronic transmission at least twenty-four (24) hours prior to the time of the meeting. |
Any oral notice given personally or by telephone may be communicated either to the director or
to a person at the office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director.
2.7 Board or Committee Action Without a Meeting. Any action required or permitted to
be taken by the Board or by any committee of the Board may be taken without a meeting if all of the
members of the Board or of the committee individually or collectively consent in writing or by
electronic transmission to the adoption of a resolution authorizing the action. Such action by
written consent shall have the same force and affect as a unanimous vote of the Board. The
resolution and the written consents or electronic transmission or transmissions by the members of
the Board or the committee shall be filed with the minutes of the proceeding of the Board or of the
committee. Such filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form.
2.8 Participation in Board or Committee Meetings by Conference Telephone. Any or all
members of the Board or of any committee of the Board may participate in a meeting of the Board or
of the committee by means of a conference telephone or other communications equipment allowing all
persons participating in the meeting to hear each other at the same time. Participation by such
means shall constitute presence in person at the meeting.
2.9 Resignation and Removal of Directors. Any director may resign at any time by
delivering his or her resignation in writing, including by means of electronic transmission, to the
president or secretary of the corporation, to take effect at the time specified in the resignation;
the acceptance of a resignation, unless required by its terms, shall not be necessary to make it
effective. Subject to applicable law and the rights of the holders of any series of preferred stock
with respect to such series of preferred stock, any or all of the directors may be removed at any
time, either with or without cause, by vote of the holders of a majority of the stock having voting
power and entitled to vote thereon.
2.10 Vacancies. Subject to applicable law and the rights of the holders of any
series of preferred stock with respect to such series of preferred stock, any vacancy in the Board,
including one created by an increase in the authorized number of directors, may be filled for the
unexpired term by a majority vote of the remaining directors, although less than a quorum.
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2.11 Compensation. Directors and members of committees shall receive such
compensation as the Board determines, together with reimbursement of their reasonable expenses in
connection with the performance of their duties. A director may also be paid for serving the
corporation, its affiliates or subsidiaries in other capacities.
2.12 Notice to Members of the Board of Directors. Each member of the Board shall file
with the secretary of the corporation an address to which mail or telegraphic notices shall be
sent, a telephone number to which a telephonic or facsimile notice may be transmitted and, at the
sole discretion of a director, such electronic address to which other electronic transmissions may
be sent. A notice mailed, telegraphed, telephoned or transmitted by facsimile or other means of
electronic transmission in accordance with the instructions provided by the director shall be
deemed sufficient notice. Such address or telephone number may be changed at any time and from
time to time by a director by giving written notice of such change to the secretary. Failure on
the part of any director to keep an address and telephone number on file with the secretary (but
not including an address for other electronic transmissions) shall automatically constitute a
waiver of notice of any regular or special meeting of the Board which might be held during the
period of time that such address and telephone number are not on file with the Secretary. A notice
shall be deemed to be mailed when deposited in the United States mail, postage prepaid. A notice
shall be deemed to be telegraphed when the notice is delivered to the transmitter of the telegram
and either payment or provision for payment is made by the corporation. Notice shall be deemed to
be given by telephone if the notice is transmitted over the telephone to some person (whether or
not such person is the director) or message recording device answering the telephone at the number
which the director has placed on file with the Secretary. Notice shall be deemed to be given by
facsimile or other means of electronic transmission when sent to the telephone number or other
address which the director has placed on file with the secretary.
2.13 Organization. Meetings of the Board shall be presided over by the chairman of
the Board, if any, or in his or her absence by the vice chairman of the Board, if any, or in his or
her absence by the chief executive officer, if any, or in his or her absence by the president, if
any. In the absence of all such directors, a president pro tem chosen by a majority of the
directors present shall preside at the meeting. The secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
2.14 Director Emeritus. The Board may from time to time elect one or more directors
emeritus (each a Director Emeritus), each of whom shall serve, at the pleasure of the Board,
until the first meeting of the Board next following the annual meeting of stockholders, subject to
an annual review, or until his or her earlier resignation or removal by the Board. A Director
Emeritus shall serve as an advisor and consultant to the Board, subject to such terms and
conditions as may be approved by the Board, and may be appointed by the Board to serve as an
advisor and consultant to one or more committees of the Board. Such Director Emeritus shall also
be available for consultation with management of the corporation. A Director Emeritus shall have
the privilege of attending meetings of the Board, and meetings of any committee of the Board for
which he or she has been appointed to serve as an advisor and consultant. A
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Director Emeritus may
participate in the discussions that occur during the portions of such meetings which he or she
attends. Notice of such meetings to a Director Emeritus shall not be required under any applicable
law, the Certificate of Incorporation, or these Bylaws. Each Director Emeritus shall be entitled
to receive such compensation as may be fixed from time to time by the Board. No Director Emeritus
shall be entitled to vote on any business coming before the Board or any committee of the Board,
nor shall he or she be counted as a member of the Board or any such committee for the purpose of
determining the number of Directors necessary to constitute a quorum, for the purpose of
determining whether a quorum is present, or for any other purpose whatsoever. In the case of a
Director Emeritus, the occurrence of any event which in the case of a director would create a
vacancy on the Board, shall be deemed to create a vacancy in such position; but the Board may
declare the position terminated until such time as the Board shall again deem it proper to create
and to fill the position. A Director Emeritus shall be entitled to indemnification under these
Bylaws to the same extent, and subject to the same conditions and limitations, as a member of the
Board.
3. COMMITTEES.
3.1 Audit Committee. The Board by resolution shall designate an Audit Committee
consisting of three directors or such other number as may be specified by the Board, which shall
review the internal financial controls of the corporation, and the integrity of its financial
reporting, and have such other powers and duties as the Board determines. The Board shall adopt a
charter, which may be amended from time to time, setting for the powers and duties of the Audit
Committee. The members of the Audit Committee shall serve at the pleasure of the Board. All
action of the Audit Committee shall be reported to the Board at its next meeting.
3.2 Compensation Committee. The Board by resolution shall designate a Compensation
Committee consisting of three directors or such other number as may be specified by the Board,
which shall administer the corporations compensation plans and have such other powers and duties
as the Board determines. The members of the Compensation Committee shall serve at the pleasure of
the Board. All action of the Compensation Committee shall be reported to the Board at its next
meeting. The Board shall adopt a charter, which may be amended from time to time, setting forth
the powers and duties of the Compensation Committee.
3.3 Corporate Governance Committee. The Board by resolution shall designate a
Corporate Governance Committee consisting of three directors or such other number as may be
specified by the Board, which shall nominate candidates for election to the Board and have such
other powers and duties as the Board determines. The members of the Corporate Governance Committee
shall serve at the pleasure of the Board. All action of the Corporate Governance Committee shall
be reported to the Board at its next meeting. The Board shall adopt a Charter, which may be
amended from time to time, setting forth the powers and duties of the Corporate Governance
Committee.
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3.4 Other Committees. The Board, by resolution adopted by a majority of the entire
Board, may designate other committees of directors of one or more directors, which shall serve at
the Boards pleasure and have such powers and duties as the Board determines.
3.5 Meetings and Action of Committees. (a) The Board may designate one or more
directors as alternate members of any committee (other than the Audit Committee), who may replace
any absent or disqualified member at any meeting of the committee. Each committee shall keep
regular minutes of its meetings and report the same to the Board at its next meeting. Each
committee may adopt rules of procedure and shall meet as provided by those rules or by resolutions
of the Board.
(b) Meetings and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of Article 2 of these Bylaws, including Section 2.2 (quorum and manner of
acting), Section 2.3 (place of meetings), Section 2.4 (annual and regular meetings), Section 2.5
(special meetings), 2.6 (notice of meetings and waiver of notice), Section 2.7 (board or committee
action without a meeting), Section 2.8 (participation in board or committee meetings by conference
telephone), Section 2.12 (notice to members of the board of directors), and Section 2.13
(organization), with such changes in the context of those Bylaws as are necessary to substitute the
committee and its members for the board of directors and its members; provided, however, (i) that
the time of regular meetings of committees may be determined either by resolution of the Board or
by resolution of the committee, (ii) that special meetings of committees may also be called by
resolution of the Board, (iii) that notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the committee; (iv) that
a majority of the members of a committee shall
constitute a quorum for the transaction of business at any meeting; and (v) that the affirmative
vote of a majority of the members of a committee shall be required to take action in respect of any
matter presented to or requiring the approval of the committee.
3.6 Election Pursuant to Section 141(c)(2). By resolution of the Board, the
corporation has elected pursuant to Section 141(c) of the General Corporation Law of Delaware to be
governed by paragraph (2) of Section 141(c) in respect of committees of the Board.
4. OFFICERS.
4.1 Number; Security. The executive officers of the corporation shall consist of a
chief executive officer, a president, one or more vice presidents (including executive vice
president(s) and senior vice president(s) if the Board so determines), a secretary and a treasurer
and a chief financial officer who shall be chosen by the Board and such other officers, including
but not limited to a chairman of the Board, a vice chairman of the Board, as the Board shall deem
expedient, who shall be chosen in such manner and hold their offices for such terms as the Board
may prescribe. Any two or more offices may be held by the same person. Either the chairman of the
Board or the president, as the Board may designate from time to time, shall be the chief executive
officer of the corporation. The Board may from time to time designate the president or any
executive vice president as the chief operating officer of the corporation. Any vice
15
president,
treasurer or assistant treasurer, or assistant secretary, respectively, may exercise any of the
powers of the president, the chief financial officer, or the secretary, respectively, as directed
by the Board and shall perform such other duties as are imposed upon such officer by the Bylaws or
the Board. The Board may require any officer, agent or employee to give security for the faithful
performance of his duties.
4.2 Election; Term of Office; Salaries. The term of office and salary of each of the
officers of the corporation and the manner and time of the payment of such salaries shall be fixed
and determined by the Board and may be altered by said Board from time to time at its pleasure,
subject to the rights, if any, of said officers under any contract of employment; provided, that
the Board may designate such responsibilities to the Compensation Committee and may also authorize
the chief executive officer or the president to establish the salaries of officers appointed
pursuant to Section 4.3.
4.3 Subordinate Officers. The Board may appoint subordinate officers (including
assistant secretaries and assistant treasurers), agents or employees, each of whom shall hold
office for such period and have such powers and duties as the Board determines. The Board may
delegate to any executive officer or to any committee the power to appoint and define the powers
and duties of any subordinate officers, agents or employees.
4.4 Resignation and Removal of Officers. Any officer may resign at any time by
delivering his resignation in writing to the chief executive officer, president or secretary of the
corporation, to take effect at the time specified in the resignation; the acceptance of a
resignation, unless required by its terms, shall not be necessary to make it effective. Any
officer elected or appointed by the Board or appointed by an executive officer or by a committee
may be removed by the Board either with or without cause, and in the case of an officer appointed
by an executive officer or by a committee, by the officer or committee who appointed him or her or
by the president.
4.5 Vacancies. A vacancy in any office may be filled for the unexpired term in the
manner prescribed in Sections 4.2 and 4.3 of these Bylaws for election or appointment to the
office.
4.6 Chairman of the Board. The chairman of the Board, if any, shall preside at
meetings of the stockholders and the Board and exercise and perform such other powers and duties as
may from time to time be assigned to him by the Board or as may be prescribed by these Bylaws.
The chairman of the Board shall report to the Board.
4.7 Vice Chairman of the Board. The vice chairman of the Board, if there shall be one,
shall, in the case of the absence, disability or death of the chairman of the Board, exercise all
the powers and perform all the duties of the chairman of the Board. The vice chairman shall have
such other powers and perform such other duties as may be granted or prescribed by the Board.
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4.8 Chief Executive Officer. Subject to the control of the Board, the chief executive
officer of the corporation shall have general supervision, direction and control over the business
of the corporation. The chief executive officer shall have such powers and be subject to such
duties as the Board may from time to time prescribe. Without limiting the generality of the
foregoing, the chief executive officer shall have the power, which he may delegate to other
officers of the corporation, to affix the signature of the corporation to all deeds, conveyances,
mortgages, leases, obligations, bonds, certificates and other papers and instruments in writing
which have been authorized by the Board or which, in the judgment of the chief executive officer,
should be executed on behalf of the corporation, and to sign certificates for shares of capital
stock of the corporation.
4.9 President. The powers and duties of the president are:
(a) To affix the signature of the corporation to all deeds, conveyances, mortgages, leases,
obligations, bonds, certificates and other papers and instruments in writing which have been
authorized by the Board or which, in the judgment of the president, should be executed on behalf of
the corporation, and to sign certificates for shares of capital stock of the corporation.
(b) To have such other powers and be subject to such other duties as the Board may from time
to time prescribe.
4.10 Vice President. In case of the absence, disability or death of the president,
the elected vice president, or one of the elected vice presidents, shall exercise all the powers
and perform all the duties of the president. If there is more than one elected vice president, the
order in which the elected vice presidents shall succeed to the powers and duties of the president
shall be as fixed by the Board. The elected vice president or elected vice presidents shall have
such other powers and perform such other duties as may be granted or prescribed by the Board.
Vice presidents appointed pursuant to Section 4.3 shall have such powers and duties as may be
fixed by the chairman of the Board or president, except that such appointed vice presidents may not
exercise the powers and duties of the president. Each vice president shall have such powers and
duties as the Board or the president assigns to him or her.
4.11 Secretary. The powers and duties of the secretary are:
(a) To keep a book of minutes at the principal office of the corporation, or such other place
as the Board may order, of all meetings of its directors and stockholders with the time and place
of holding, whether regular or special, and, if special, how authorized, the notice thereof given,
the names of those present at directors meetings, the number of shares present or represented at
stockholders meetings and the proceedings thereof.
(b) To keep the seal of the corporation, if any, and affix the same, if any, to all
instruments which may require it.
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(c) To keep or cause to be kept at the principal office of the corporation, or at the office
of the transfer agent or agents, a share register, or duplicate share registers, showing the names
of the stockholders and their addresses, the number of and classes of shares, and the number and
date of cancellation of every certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the corporation, to fill in all
certificates issued, and to make a proper record of each such issuance; provided, that so long as
the corporation shall have one or more duly appointed and acting transfer agents of the shares, or
any class or series of shares, of the corporation, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the corporation any and all shares of the corporation;
provided, that so long as the corporation shall have one or more duly appointed and acting transfer
agents of the shares, or any class or series of shares, of the corporation, such duties with
respect to such shares shall be performed by such transfer agent or transfer agents, and the method
of transfer of each certificate shall be subject to the reasonable regulations of the transfer
agent to which the certificate is presented for transfer, and also, if the corporation then has one
or more duly appointed and acting registrars, to the reasonable regulations of the registrar to
which the new certificate is presented for registration; and provided, further that no certificate
for shares of stock shall be issued or delivered or, if issued or delivered, shall have any
validity whatsoever until and unless it has been signed or authenticated in the manner provided in
Section 5.1 hereof.
(f) To make service and publication of all notices that may be necessary or proper, and
without command or direction from anyone. In case of the absence, disability, refusal, or neglect
of the secretary to make service or publication of any notices, then such notices may be served
and/or published by the president or a vice president, or by any person
thereunto authorized by either of them or by the board of directors or by the holders of a majority
of the outstanding shares of the corporation.
(g) To sign certificates for shares of capital stock of the corporation.
(h) Generally to do and perform all such duties as pertain to the office of secretary and as
may be required by the Board.
4.12 Treasurer. The treasurer shall be or shall be under the direction of the chief
financial officer of the corporation, and shall be in charge of the corporations books and
accounts. Subject to the control of the Board, he or she shall have such other powers and duties
as the Board or the president assigns to him or her.
4.13 Chief Financial Officer. The powers and duties of the chief financial officer
are:
(a) To supervise the corporate-wide treasury functions and financial reporting
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to external
bodies.
(b) To have the custody of all funds, securities, evidence of indebtedness and other valuable
documents of the corporation and, at the chief financial officers discretion, to cause any or all
thereof to be deposited for account of the corporation at such depositary as may be designated from
time to time by the Board.
(c) To receive or cause to be received, and to give or cause to be given, receipts and
acquittances for monies paid in for the account of the corporation.
(d) To disburse, or cause to be disbursed, all funds of the corporation as may be directed by
the Board, taking proper vouchers for such disbursements.
(e) To render to the chief executive officer and president, and to the Board, whenever they
may require, accounts of all transactions and of the financial condition of the corporation.
(f) Generally to do and perform all such duties as pertain to the office of chief financial
officer and as may be required by the Board.
5. SHARES.
5.1 Shares of the Corporation. The shares of the corporation shall be represented by
certificates, provided that the Board may provide by resolution or resolutions that some or all of
any or all classes or series of its stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every
holder of stock represented by certificates and upon request every holder of uncertificated shares
shall be entitled to have a certificate signed by, or in the name of the corporation by the
chairman or vice chairman of the board of directors or by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, representing
the number of shares registered in certificate form. The signatures of any such officers thereon
may be facsimiles. The seal of the corporation shall be impressed, by original or by facsimile,
printed or engraved, on all such certificates. The certificate shall also be signed by the transfer
agent and a registrar and the signature of either the transfer agent or the registrar may also be
facsimile, engraved or printed. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon any such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such certificate may
nevertheless be issued by the corporation with the same effect as if such officer, transfer agent,
or registrar had not ceased to be such officer, transfer agent, or registrar at the date of its
issue.
5.2 Special Designation on Certificates. If the corporation is authorized to issue
more than one class of stock or more than one series of any class, then the powers, the
designations, the preferences, and the relative, participating, optional or other special rights or
each class of
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stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face or back of the
certificate that the corporation shall issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the
certificate that the corporation shall issue to represent such class or series of stock a statement
that the corporation will furnish without charge to each stockholder who so requests the powers,
the designations, the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
5.3 Lost, Stolen, Destroyed and Mutilated Certificates. The owner of any stock of the
corporation shall immediately notify the corporation of any loss, theft, destruction or mutilation
of any certificate therefor, and the corporation may issue uncertificated shares or a new
certificate for stock in the place of any certificate theretofore issued by it and alleged to have
been lost, stolen or destroyed, and the Board may, in its discretion, require the owner of the
lost, stolen or destroyed certificate or his or her legal representatives to give the corporation a
bond in such sum, limited or unlimited, and in such form and with such surety or sureties, as the
Board shall in its uncontrolled discretion determine, to indemnify the corporation against any
claim that may be made against it on account of the alleged loss, theft or destruction of any such
certificate, or the issuance of any such new certificate or uncertificated shares. The Board may,
however, in its discretion refuse to issue any such new certificate or uncertificated shares except
pursuant to legal proceedings under the laws of the State of Delaware in such case made and
provided.
5.4 Stock Records. The corporation or a transfer agent shall keep stock books in
which shall be recorded the number of shares issued, the names of the owners of the shares, the
number owned by them respectively, whether such shares are represented by certificates or are
uncertificated, and the transfer of such shares with the date of transfer.
5.5 Transfers. Transfers of stock shall be made only on the stock transfer record of
the corporation upon surrender of the certificate or certificates being transferred which
certificate shall be properly endorsed for transfer or accompanied by a duly executed stock power,
except in the case of uncertificated shares, for which the transfer shall be made only upon receipt
of transfer documentation reasonably acceptable to the corporation. Whenever a certificate is
endorsed by or accompanied by a stock power executed by someone other than the person or persons
named in the certificate, or the transfer documentation for the uncertificated shares is executed
by someone other than the holder of record thereof, evidence of authority to transfer same shall
also be submitted with the certificate or transfer documentation. All certificates surrendered to
the corporation for transfer shall be canceled.
5.6 Regulations Governing Issuance and Transfers of Shares. The Board shall have the
power and authority to make all such rules and regulations as it shall deem expedient concerning
the issue, transfer and registration of shares of stock of the corporation.
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5.7 Transfer Agents and Registrars. The Board may appoint, or authorize one or more
officers to appoint, one or more transfer agents and one or more registrars.
5.8 Record Date for Purposes Other than Notice and Voting. For purposes of
determining the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights in respect of any other
lawful action, the Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted and which shall not be more than sixty (60)
days before any such action. In that case, only stockholders of record at the close of business on
the date so fixed are entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books
of the corporation after the record date so fixed, except as otherwise provided in the Certificate
of
Incorporation, by these Bylaws, by agreement or by law. If the Board does not so fix a record date,
then the record date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution.
6. MISCELLANEOUS.
6.1 Seal. The Board shall adopt a corporate seal, which shall be in the form of a
circle and shall bear the corporations name and the year and state in which is was incorporated.
6.2 Fiscal Year. The Board may determine the corporations fiscal year. Until
changed by the Board, the corporations fiscal year shall be the calendar year.
6.3 Voting of Shares in Other Corporations. Shares in other corporations which are
held by the corporation may be represented and voted by the president or a vice president of this
corporation or by proxy or proxies appointed by one of them. The Board may, however, appoint some
other person to vote the shares.
6.4 Checks; Drafts; Evidences of Indebtedness. From time to time, the Board shall
determine by resolution which person or persons may sign or endorse all checks, drafts, other
orders for payment of money, notes or other evidences of indebtedness that are issued in the name
of or payable to the corporation, and only the persons so authorized shall sign or endorse those
instruments.
6.5 Corporate Contracts and Instruments; How Executed. The Board, except as otherwise
provided in these Bylaws, may authorize any officer or officers, or agent or agents, to enter into
any contract or execute any instrument in the name of and on behalf of the corporation; such
authority may be general or confined to specific instances. Unless so authorized or ratified by
the Board or within the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to pledge its credit or
to render it liable for any purpose or for any amount.
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6.6 Construction; Definitions. Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the General Corporation Law of Delaware shall
govern the construction of these Bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the singular, the term person
includes both a corporation and a natural person, and the masculine gender includes the feminine
gender and vice versa.
6.7 Provisions Additional to Provisions of Law. All restrictions, limitations,
requirements and other provisions of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject matter thereof and
shall be fully complied with in addition to the said provisions of law unless such compliance shall
be illegal.
6.8 Provisions Contrary to Provisions of Law. Any article, section, subsection,
subdivision, sentence, clause or phrase of these Bylaws which upon being construed in the manner
provided in Section 6.7 hereof, shall be contrary to or inconsistent with any applicable provisions
of law, shall not apply so long as said provisions of law shall remain in effect, but such result
shall not affect the validity or applicability of any other portions of these Bylaws, it being
hereby declared that these Bylaws would have been adopted and each article, section, subsection,
subdivision, sentence, clause or phrase thereof, irrespective of the fact that any one or more
articles, sections, subsections, subdivisions, sentences, clauses or phrases is or are illegal.
6.9 Amendments. Bylaws may be amended, repealed or adopted by a majority of the
entire Board, provided that written notice of any such proposed action shall have been given to
each director prior to such meeting, or that notice of such addition, amendment, alteration or
report shall have been given at the preceding meeting of the Board. The Bylaws may also be amended,
repealed or adopted by the affirmative vote of the holders of a majority of the voting power of the
stock issued and outstanding and entitled to vote thereon; provided, however, that in the case of
any such stockholder action at a special meeting of stockholders, notice of the proposed
alteration, repeal or adoption of the new Bylaw or Bylaws must be contained in the notice of such
special meeting. The fact that the power to amend these Bylaws has been so conferred upon the
directors shall not divest the stockholders of the power, nor limit their power to amend, adopt or
repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied in the book of bylaws with the
original bylaws, in the appropriate place. If any bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or the filing of the operative written
consent(s) shall be stated in said book.
6.10 Indemnification and Insurance. 1
1 | As Amended February 6, 2001 |
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(a) Generally.
(1) The corporation shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was or has
agreed to serve at the request of the corporation as a director or officer of the corporation, or
is or was serving or has agreed to serve at the request of the corporation as a director or officer
(which, for purposes hereof, shall include a trustee or similar capacity)of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity.
(2) The corporation may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was or has
agreed to serve at the request of the corporation as an employee or agent of the corporation, or is
or was serving or has agreed to serve at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise,
or by reason of any action alleged to have been taken or omitted in such capacity.
(3) The indemnification provided by this subsection (a) shall be from and against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the indemnitee or on his or her behalf in connection with such action, suit
or proceeding and any appeal therefrom, but shall only be provided if the
indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(4) Notwithstanding the foregoing provisions of this subsection (a), in the case of an action
or suit by or in the right of the corporation to procure a judgment in its favor (i) the
indemnification provided by this subsection (a) shall be limited to expenses (including attorneys
fees) actually and reasonably incurred by such person in the defense or settlement of such action
or suit, and (ii) no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation unless, and only to the
extent that, the Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem proper.
(5) The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with
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respect to any
criminal action or proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(b) Successful Defense. To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection (a) hereof or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him or her in connection therewith. If a director or officer is not wholly
successful, on the merits or otherwise, in any action, suit or proceeding but is successful, on the
merits or otherwise, as to any claim, issue or matter in such action, suit or proceeding, the
corporation shall indemnify such person against all expenses (including attorneys fees) actually
and reasonably incurred by such person or on his or her behalf relating to each successfully
resolved claim, issue or matter. For purposes of this Section 6.10 and without limitation, the
termination of a claim, issue or matter in an action, suit or proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
(c) Determination That Indemnification Is Proper. Any indemnification of a person
entitled to indemnity under subsection (a)(1) hereof shall (unless otherwise ordered by a court) be
made by the corporation unless a determination is made that indemnification of such person is not
proper in the circumstances because he or she has not met the applicable standard of conduct set
forth in subsection (a)(3) hereof. Any indemnification of a person entitled to indemnity under
subsection (a)(2) hereof may (unless otherwise ordered by a court) be made by the corporation upon
a determination that indemnification of such person is proper in the
circumstances because he or she has met the applicable standard of conduct set forth in subsection
(a)(3) hereof. Any such determination shall be made (i) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even if less than a quorum, or (ii) if there are no
such directors, or if such directors so direct, by independent legal counsel in a written opinion,
or (iii) by the stockholders.
(d) Advance Payment of Expenses; Notification and Defense of Claim.
(i) Expenses (including attorneys fees) incurred by a director or officer in defending a
threatened or pending civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the
corporation as authorized in this Section. Such expenses (including attorneys fees) incurred by
other employees and agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(ii) Promptly after receipt by a director, officer, employee or agent of notice of the
commencement of any action, suit or proceeding, such person shall, if a claim thereof is to be made
against the corporation hereunder, notify the corporation of the commencement thereof. The failure
to promptly notify the corporation will not relieve the
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corporation from any liability that it may
have to such person hereunder, except to the extent the corporation is prejudiced in its defense of
such action, suit or proceeding as a result of such failure.
(iii) The Board of Directors may authorize the corporations counsel to represent a director,
officer, employee or agent in any action, suit or proceeding, whether or not the corporation is a
party to such action, suit or proceeding. In the event the corporation shall be obligated to pay
the expenses of any person with respect to an action, suit or proceeding, as provided in this
Section 6.10, the corporation, if appropriate, shall be entitled to assume the defense of such
action, suit or proceeding, with counsel reasonably acceptable to such person, upon the delivery to
such person of written notice of its election to do so. After delivery of such notice, approval of
such counsel by such person and the retention of such counsel by the corporation, the corporation
will not be liable to such person under this Section 6.10 for any fees of counsel subsequently
incurred by such person with respect to the same action, suit or proceeding, provided that (i) the
director, officer, employee or agent shall have the right to employ his or her counsel in such
action, suit or proceeding at such persons expense and (b) if (i) the employment of counsel by
such person has been previously authorized in writing by the corporation, (ii) counsel to the
director, officer, employee or agent shall have reasonably concluded that there may be a conflict
of interest or position on any significant issue between the corporation and such person in the
conduct of any such defense or (iii) the corporation shall not, in fact, have employed counsel to
assume the defense of such action, suit or proceeding, then the fees and expenses of such persons
counsel shall be at the expense of the corporation.
(iv) Notwithstanding any other provision of this Section 6.10 to the contrary, to the extent
that any director or officer is, by reason of his or her corporate status, a witness or otherwise
participates in any action, suit or proceeding at a time when such person is not a party in the
action, suit or proceeding, the corporation shall indemnify such person against all expenses
(including attorneys fees) actually and reasonably incurred by such person or on his or her behalf
in connection therewith.
(e) Procedure for Indemnification of Required Indemnitees. Any indem-nification of a
person the corporation is required to indemnify under subsection (a) hereof, or advance of costs,
charges and expenses of a person the corporation is required to pay under subsection (d) hereof,
shall be made promptly, and in any event within 60 days, upon the written request of such person.
If the corporation fails to respond within 60 days, then the request for indemnification shall be
deemed to be approved. The right to indemnification or advances as granted by this Section 6.10
shall be enforceable by the person the corporation is required to indemnify under subsection (a)
hereof in any court of competent jurisdiction if the corporation denies such request, in whole or
in part. Such persons costs and expenses incurred in connection with successfully establishing his
or her right to indemnification, in whole or in part, in any such action shall also be indemnified
by the corporation. It shall be a defense to any such action (other than an action brought to
enforce a claim for the advance of costs, charges and expenses under subsection (d) hereof where
the required undertaking, if any, has been received by the corporation) that the claimant has not
met the standard of conduct set forth in subsection (a)
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hereof, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set forth in subsection
(a) hereof, nor the fact that there has been an actual determination by the corporation (including
its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
A director or officer shall be presumed to be entitled to indemnification under this Section
6.10 upon submission of a request for indemnification pursuant to this subsection (e), and the
corporation shall have the burden of proof in overcoming that presumption in reaching a
determination contrary to that presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the corporation provides information
sufficient to overcome such presumption by clear and convincing evidence.
(f) Survival; Preservation of Other Rights. The provisions of this Section 6.10 shall
be deemed to be a contract between the corporation and each director, officer, employee and agent
who serves in such capacity at any time while these provisions as well as the relevant provisions
of the General Corporation Law of the State of Delaware are in effect and any
repeal or modification thereof shall not affect any right or obligation then existing with respect
to any state of facts then or previously existing or any action, suit, or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state of facts. Such a
contract right may not be modified retroactively without the consent of such director, officer,
employee or agent. The indemnification provided by this Section 6.10 shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(g) Indemnification Agreements. Without limiting the provisions of this Section 6.10,
the corporation is authorized from time to time, without further action by the stockholders of the
corporation, to enter into agreements with any director, officer, employee or agent of the
corporation providing such rights of indemnification as the corporation may deem appropriate, up to
the maximum extent permitted by law. Any agreement entered into by the corporation with a director
may be authorized by the other directors, and such authorization shall not be invalid on the basis
that similar agreements may have been or may thereafter be entered into with other directors.
(h) Insurance and Subrogation
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(i) The corporation may purchase and maintain insurance on behalf of any person who
is or was or has agreed to serve at the request of the corporation as a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against, and incurred by, him or
her or on his or her behalf in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her against such liability
under the provisions of this Section 6.10.
(ii) In the event of any payment by the corporation under this Section 6.10, the corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of such person,
who shall execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the corporation to bring suit to
enforce such rights in accordance with the terms of such insurance policy.
(iii) The corporation shall not be liable under this Section 6.10 to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) if and to the extent that such person
has otherwise actually received such payment under the Certificate of Incorporation or these Bylaws
or any insurance policy, contract, agreement or otherwise.
(i) Certain Definitions. For purposes of this Section 6.10, references to the
corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors,
officers, employees or agents so that any person who is or was a director, officer employee or
agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall stand in the same position under
the provisions of this Section 6.10 with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Section 6.10, references to fines shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to serving at the
request of the corporation shall include any service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to the best interests of the corporation as referred to in this Section 6.10.
(j) Limitation on Indemnification. Notwithstanding any other provision herein to the
contrary, the corporation shall not be obligated pursuant to these Bylaws:
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(a) To indemnify or advance expenses to a director, officer, employee or agent with
respect to proceedings (or part thereof) initiated by such person, except with respect to
proceedings brought to establish or enforce a right to indemnification (which shall be
governed by the provisions of this Section 6.10), unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors of the corporation.
(b) To indemnify a director, officer, employee or agent for any expenses incurred by
such person with respect to any proceeding instituted by such person to enforce or interpret
these Bylaws, if a court of competent jurisdiction determines that each of the material
assertions made by such person in such proceedings was not made in good faith or was
frivolous;
(c) To indemnify a director, officer, employee or agent for expenses or the payment of
profits arising from the purchase and sale by such person of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
(k) Certain Settlement Provisions. The corporation shall have no obligation to
indemnify any director, officer, employee or agent under this Section 6.10 for amounts paid in
settlement of any action, suit or proceeding without the corporations prior written consent,
which shall not be unreasonably withheld. The corporation shall not settle any action, suit or
proceeding in any manner that would impose any fine or other obligation on any director or officer
or employee or agent without such persons prior written consent.
(l) Savings Clause. If this Section 6.10 or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the corporation shall nevertheless
indemnify each director or officer and may indemnify each employee or agent of the corporation as
to costs, charges and expenses (including attorneys fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative
or investigative, including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this Section 6.10 that shall not have been invalidated and
to the full extent permitted by applicable law.
(m) Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for herein is held by a court of competent
jurisdiction to be unavailable to a director or officer in whole or in part, it is agreed that, in
such event, the corporation shall contribute to the payment of such directors or officers costs,
charges and expenses (including attorneys fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, but not including an action by or in the right of the corporation, in an amount that
is just and equitable in the circumstances, taking into account, among other things, contributions
by other directors and officers of the corporation or others pursuant to
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indemnification agreements
or otherwise; provided, that, without limiting the generality of the foregoing, such
contribution shall not be required where such holding by the court is due to (i) the failure of
such director or officer to meet the standard of conduct set forth in subsection (a) hereof, or
(ii) any limitation on indemnification set forth in subsection (h)(iii), (j) or (k) hereof.
(n) Form and Delivery of Communications. Any notice, request or other communication
required or permitted to be given to the corporation under this Section 6.10 shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight mail or courier
service, or certified or registered mail, postage prepaid, return receipt requested, to the
General Counsel or Secretary of the corporation at its principal executive offices.
(o) Subsequent Legislation. If the General Corporation Law of Delaware is amended
after adoption of this Section 6.10 to expand further the indemnification permitted to directors or
officers, then the corporation shall indemnify such persons to the fullest extent permitted by the
General Corporation Law of Delaware, as so amended.
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